# Petition for A Writ of Certiorari — Safeway Stores, Inc. v. West

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for A Writ of Certiorari
- **Published:** January 1, 1950
- **Citation:** 339 U.S. 952

## Text

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MAR 2 0 1950

CHARLES ELRIORE CROPLEY

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In THE

Supreme Court of the Anited States

October Term, 1949

ia ia

Sareway Stores, ino., a Corporation,
Petitioner,

Vv.

EizaBeTtH West, VESTER WEST,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
AND BRIEF IN SUPPORT THEREOF

/ Corne.ius H. DoHERTY
1010 Vermont Avenue, N. W.
Washington, D. C.
Attorney for Petitioner

WILSON - Eres PRINTING Co. - RE 6003 - WASHINGTON 1, D. C.

ee

INDEX

PAGE

Petition 1
Summary Statement of Matter Involved 2
The Basis of the Court’s Jurisdiction 7
Questions Presented 8
Reasons Relied Upon for the Allowance of the Writ... 8
Brief in Support of Petition 11
Opinion of the Court Below 11
Specification of Errors 11
Argument 12

The United States Court of Appeals for the Dis-
trict of Columbia Misconceived the Law of Res
Ipsa Loquitur as Stated in the Applicable Deci-
sions of this Court and Misapplied That Law

to the Facts in This Case 12
The Doctrine of Res Ipsa Loquitur is Not Appli-

cable When the Negligence is Known 15
The Instrumentality Causing the Injury Was Not

in the Exclusive Control of Defendant.................. 18

The Instrumentality Causing Injury Could Have
Caused the Injury Without Negligence of the
Defendant 18

The Rules of Civil Procedure for the District
Courts of the United States Do Not Require
That Contributory Negligence Be Pleaded
When It Appears in the Plaintiff’s Testimony
and the United States Court of Appeals for
the District of Columbia Erred in Failing to
Decide That the District Court Should Have
Instructed the Jury on Contributory Negli-
I aeciiaiatetinecttioninihepnanianninleicis 19

Conclusion

Cases Cited

Brown v. Capital Transit Company, 75 U. S. App.
D. C. 337, 127 Fed. (2d) 329

Brown v. Dorney Park, 167 Fed. (2d) 453.................... 9,19

ee ne CIE ELT

—

ii INDEX (Continued)
PAGE
Farina v. First National Bank, 72 Ohio App. 109,

51 N. E. (2d) 18
Gray v. Baltimore & O. R. Company, 24 F. (2d) 671... 9,16
Hook v. National Brick Co., 150 Fed. (2d) 184.............. 19
J. Maury Dove Company v. Cook, 59 App. 61, 32 Fed.

EE UNE cicieeubindiin tals eniacsililenatacensinRigrsinbelignity cant 9, 20
Jaquette v. Capital Traction Co., 34 App. 51.................. 8

Jesionowski v. Boston & M. R. R., 399° v S 452, 67

Supreme Court Rep. 401......22..22.0222.....-20+---+- 8,12
Johnson v. United States, 333 U. S. 46, 68 Supreme

CR nooner 8, 12, 14, 15
King v. Davis, 54 App. D. C. 239... 8, 16

Kramer v. Mills Lumber Company, 24 Fed. (2d) 313.. 9
Pistorio v. Washington Railway & Electric Company,
© 8 ig St SRR reenereree 8,
San Juan Light & Transit Co. v. Requena, 224 U. S.
oe & Se ye | 18
Sweeney v. Erving, 228 U. S. 233, 33 Supreme Court
p. 416 8, 18

Washington Loan and Trust Company v. Hickey, 78

App. D. C. 59, 137 Fed. (2d) 677.................... 13

Woolworth v. Williams, 59 App. D. C. 347, 41 Fed.
(2d) 970 ‘ 19

In THE

Suvreme Court of the Anited States

October Term, 1949

OE cia

Sareway Srorss, Lyc., a Corporation,
Petitioner,

Vv.

EizasetuH West, VESTER WEsT,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT CF COLUMBIA CIRCUIT.

The petition of Safeway Stores, Inc., a Corporation, for
a writ of certiorari to the United States Court of Appeals
for the District of Columbia, entered on the 23rd day of
January, 1950, affirming a judgment against your peti-
tioner and in favor of the respondents in the sum of
Forty-five Thousand Dollars ($45,000.00) entered in the
United States District Court for the District of Columbia
on the 6th day of January, 1949, respectfully shows:

=.

SUMMARY STATEMENT OF MATTER INVOLVED

2

Your petitioner, on the 28th day of June, 1945, and a
long time prior thereto, operated a store at 1613 Mon-
tello Avenue, N. E., and on this day the respondent,
Elizabeth West, opened a screen door with the intention
of entering the store. As she started to go in, a lady was
coming out with a baby in a stroller and she stepped back
to allow the lady to pass, and as she held the door open
the spring broke and struck her in the eye.

Mrs. West stated that she had used the screen door
before and opened the door normally and walked in, but
she did not remember how she opened the door on that
particular day. All she remembered was that she held
the door open but in what position she could not say.
She knew that there was a spring on the door and that
she had a spring on her own screen door at home and they
looked alike (R. 13-21).

A Mrs. Margaret Howes, a witness for the respondent,
stated that she was familiar with the store and was a
customer in the store on the morning of June 28, 1945,
and she was accompanied by her little baby who was trans-
ported in a stroller. She went to the store about 9:00
A.M. that morning and as she was leaving the store
Mrs. West was coming in and Mrs. West stepped back
and held the door open while she pushed the stroller
down the step, and as she was pushing it down the step
she heard a snap and a zinging sound and heard Mrs. West
scream. She saw the spring fly back and bounce up on
the screen door. She stated that she informed the man-
ager, Mr. Weaver, of the fact that the spring had broken
on the door and hit Mrs. West in the eye. The spring was
a metal spring which hooked onto the: side of the door
and to the door jamb and that the spring was hanging
to the screen door where it had broken off and it was on
the screen door when she saw it. She stated that the

——

3

spring was broken at the end and that it was rusty but did
not call it to the manager’s attention (R. 21-27).

On cross-examination, Mrs. Howes stated that she went
to the store two or three times a week and that on this
particular morning she went to the store about 9:00 A.M.
and saw nothing wrong with the door or spring as she
went in. She saw nothing wrong with the spring as she
was coming out, and that she had screen doors at her
home and thought that she had the same type springs on
the doors. She denied that Mrs. West pushed the screen
door back against the wall. She stated that the spring
was broken at the end where it snapped right off. She
didn’t pay too much attention to it but just looked at the
end and saw that it had broken off (R. 27-30).

The following questions and answers, which were put
to the witness, appear on page 31 of the record:

‘*By Mr. Doherty:
Q Now, on the question of the opening of this door,
have you talked to anybody since the other proceed-
ing that was had in this case on the 16th day of De-
cember, 1948? Have you discussed your testimony
with anybody since that time? A Just to my family.
Q Nobody else atall? A To friends.
Q Have you discussed it with any party to this suit?
A No.
Q Yourcounsel? A No.

Mr. Doherty: I am now referring to page 109 of
this record (indicating).

By Mr. Doherty:
Q I will ask you whether or not this was not your
testimony on the 16th day of December, 1948, this past
month.
‘Q. Now, this particular day you heard a crack of
some kind, is that what you heard? And your answer
was: ‘Yes.’
‘Q She had pushed the door all the way back?
Way back?’ ‘A Yes.’
‘Q Was it back against the building? ‘A Yes.’
‘Q Just about?’

SOTERA PSY

a

4
‘a Xen.’
Was that your testimony at that time? A Well, I
guess so.”’

The following questions and answers appear on page 33
of the record:

**By Mr. Doherty:
Q Did you read the original of this statement before
you signed it? A Yes.
Q You had a notation that you have read it, the
statement of one page and it is true? A Yes.
Q Now, in that statement didn’t you put in there,
this statement, ‘She pulled the screen door open as
far as it would go.’ Is that what you told Mr. Briggs
at that time? A Well, I guess so, if it is in there.
Q And that would be in accord with the same testi-
mony that you gave in December, just a month ago,
right over here in another court; But now you say
that isn’t so, that you didn’t—that she didn’t open
the door as far as it would go and back up against
the wall, as you previously testified. A I really
don’t remember, if I saw that—
x You wouldn’t deny you said it, would you? A
0.
Q How long did you stay there after this accident
occurred? A Oh, I guess about twenty minutes or
something like that.
Q Waited until the ambulance came? A No, they
took her inside and then I went on home.
Q And when did you look at the spring? A Well,
after they revived her and asked her where she lived
and asked me where I lived, and my name, and then
I went over and looked at it.
Q And youinspectedit? A Yes.
Q Did you look down at the end where it had
broken? A_ Yes.
Q Was there another little part left on the door
jamb, on the eye—the eye was still there, wasn’t it,
with the screws? A Yes.”’

The respondent, Vester West, testified that he went
into the store approximately twice a week and used the
screen doors and that he did not notice anything wrong

—7~"

5

with them. He had used the screen door the Saturday
prior to the accident and the door worked properly at
that time (R. 36).

A motion was made at the close of the respondents’
ease for a directed verdict on the ground that no negli-
gence of any kind was shown on the part of the Safeway
Stores and that the doctrine of res ipsa loquitur would not
apply (R. 38). This motion was denied (R. 50-51).

The petitioner produced evidence that the store in
question was closed down for approximately three (3)
weeks in order that it might be remodeled in May of
1945 and that it was remodeled under and by virtue of a
contract with Edison Crawford Bittenbender and he re-
ceived Twenty-one Hundred Fifty-one Dollars and
Eighteen Cents ($2151.18) for remodeling the store, and
that new coil springs were placed on the screen doors at
that time.

Mr. Bittenbender testified that he could not tell from
looking at a spring whether there was a defect of any
kind in it. The spring is put on the door and pulled back
and forth and if the spring doesn’t break that would be
the only test as to whether the spring was bad or good
(R. 53-58).

On cross-examination, he stated that the only inspection
he made consisted of pulling the door open to see if the
door would close properly and that the spring didn’t have
too much tension on it. He stated further that rust will
not hurt the springs. (R. 58-62).

On re-direct examination, he stated that when the
springs get a little water on them, or rust as you would
say, and you pull it back and forth constantly, like it is
on a screen door, it would give, and instead of putting it
away on the front, when it comes to half way, we put a
new spring on there. He stated further that the metal
was treated for rust (R. 63).

” et re
2 REPRESS RAPE LO EE IIE

a

Charles A. Riggs stated that he was employed by E. C.
Bittenbender in May of 1945 and was in charge of the
remodeling of the store at 1613 Montello Avenue, N. E.
He stated that the screen doors were remodeled and
placed in first class condition under his supervision and
new springs were put on the doors at that time. He iden-
tified the type of the spring which was used on the door
which he said was placed near the center of the door about
waist high. He stated that there is, as a rule, a cross-rail
about the center of the door and that he always hooks the
spring in the center of the rail, which would be about
waist high, and that was the proper place to put it. He
stated that there was no special way of checking the spring
other than to open the door backward and forward to its
fullest extent and see that the spring works the door and
doesn’t work too much of a strain on the springs so that
it doesn’t slam the door too hard. He stated that when
the spring is used quite a bit and gets old it will stretch
out so that it hasn’t any recoil and not strength enough
to close the door. He stated that he saw part of the
spring that was broken and that he did not know what
caused it to break and that he didn’t have the slightest
idea. He stated that the piece that was brought to his
shop was about the size of the piece that was shown him
in the Court room and that the piece that was shown him
soon after the accident was not rusty (R. 64-67).

6

It was testified to that Frank Weaver, the manager of
the store in June of 1945, had died in July of 1947
(R. 72-79).

At the Wlose of all the evidence the petitioner renewed
his motion for a directed verdict based upon the original
ground given and further that if there was any inference
of negligence by reason of the happening of the accident
that it had overcome this negligence by direct evidence
(R. 81).

The Court stated that the screen door and the spring
were both matters over which the defendant had complete

7

control and that the plaintiff had no control of it, and, on
page 85 of the record, this motion was denied. The Court
denied the motion and indicated that the burden of proof,
where res ipsa loquitur is relied upon, is upon the de-
fendant to show that there was no negligence.

The Court permitted the case to go to the jury under
the doctrine of res ipsa loquitur, and plaintiffs’ instruction
No. 5, covering the doctrine of res ipsa loquitur, was read
to the jury (R. 9).

The petitioner asked for an instruction on contributory
negligence, defendant’s instruction No. 5, (R. 11) and this
instruction was denied (R. 11).

The jury found in favor of the plaintiff and a motion to
set aside the judgment and enter judgment for the de-
fendant and/or grant a new trial was denied on the 9th
of February, 1949 (R. 6-7).

The petitioner, in its brief in the United States Court
of Appeals, relied upon nine (9) separate errors made
by the trial Court, but the only point referred to in the
opinion was that which covered the application of the doc-
trine of res ipsa loquitur.

In the argument in the United States Court of Appeals,
counsel for the respondents stated that the petitioner was
claiming error in the refusal of the trial Court to allow
an instruction on contributory negligence and that it had
not been pleaded. Judge Bennett Champ Clark, the pre-
siding Judge, then said that if the petitioner had not
pleaded contributory negligence then what complaint did
it have?

THE BASIS OF THE COURT’S JURISDICTION

The jurisdiction of this Court is based upon Section
240 (a) of the Judicial Code, as amended, Title 28
U.S. C. A., see. 1254 (1).

8

The date of the judgment sought to be reviewed is
January 23, 1950 (R. 108).

QUESTIONS PRESENTED

1. (a) Was there a correct interpretation by the
United States Court of Appeals for the District of Co-
lumbia of the Doctrine of res ipsa loquitur as applied
in the District of Columbia and in other Federal Circuits?

(b) Was there a correct application of that doctrine
to the facts in this case?

2. (a) Did the United States Court of Appeals for the
District of Columbia err in failing to pass upon petition-
er’s request for an instruction on contributory negligence?

(b) Did not the facts of this case require that the
question of contributory negligence be decided by a jury?

REASONS RELIED UPON FOR THE ALLOWANCE
OF THE WRIT

(1) The decision of the United States Court of Appeals
for the District of Columbia Circuit in this case on the
question of res ipsa loquitur is in conflict with the ap-
plicable decisions of this Court in

Johnson v. United States, 333 U. S. 46, 68 Supreme
Court Rep. 391

Jesionowski v. Boston & M. R. R., 329 U. S. 452, 67
Supreme Court Rep. 401

Sweeney v. Erving, 228 U. S. 233, 33 Supreme Court
Rep. 416

The decision in this case is in direct conflict with the
decisions of the United States Court of Appeals for the
District of Columbia:

Jaquette v. Capital Traction Co., 34 App. 41

Pistorio v. Washington Railway & Electric Company,
46 App. D. C. 485

King v. Davis, 54 App. D. C. 239

La

9

The decision of the United States Court of Appeals for
the District of Columbia is in conflict with the various
Circuit Courts of Appeals in the following decisions:

Gray v. Baltimore & O. R. Company, 24 F. (2d) 671
Kramer v. Mills Lumber Company, 24 Fed. (2d) 313
Brown v. Dorney Park, 167 Fed. (2d) 453

In the case of Johnson v. United States, 333 U. S. 46, 68
Supreme Court Rep. 391, this Court left open the question
of the application of the doctrine of res ipsa loquitur
where it was shown that the injured person was an actor
in the occurrence.

(2) The decision of the United States Court of Appeals
for the District of Columbia in this case in failing to
pass upon the instruction of contributory negligence for
the supposed reason that it was not pleaded is in conflict
with its own decisions:

J. Maury Dove Company v. Cook, 59 App. 61, 32 Fed.
(2d) 957

Wuererore, it is respectfully submitted that this peti-
tion for a writ of certiorari to review the judgment of
the United States Court of Appeals for the District of
Columbia should be granted.

Corne.ius H. DoHErty
1010 Vermont Avenue N. W.
Washington, D. C.
Attorney for Petitioner

11

In THE

Supreme Court of the Anited States

October Term, 1949
Bs eats

Sareway Srorzs, Inc., a Corporation,
Petitioner,
v.

EvizasetH West, Vester West,
Respondents.

BRIEF IN SUPPORT OF PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT

OPINION OF THE COURT BELOW

The opinion of the United States Court of Appeals for
the District of Columbia has not been officially reported
at the time this is written, but is printed in the record
(R. 108).

SPECIFICATION OF ERRORS

(1) The United States Court of Appeals for the Dis-
trict of Columbia erred in holding that this was a proper
case for the application of the doctrine of res ipsa loquitur

Oe:

12

and that it should have required the respondents to prove
negligence on the part of the petitioner especially where
the record discloses that the respondent was an actor in
the cceurrence, and that she and her witnesses were the
only persons who had actual knowledge of what occurred.

(2) The United States Court of Appeals for the Dis-
trict of Columbia erred in holding that the doctrine of res
ipsa loquitur applied where the record disclosed that the
respondents’ witnesses stated that the spring appeared
to he working properly pricr to the accident and that
because of the mere breaking of the spring there was an
inference of negligence.

(3) The United States Court of Appeals for the Dis-
trict of Columbia erred in refusing to consider the refusal
of the trial Court to instruct the jury on contributory
negligence. The action of the United States Court of
Appeals for the District of Columbia being due to a mis-
application of the law covering the necessity of pleading
contributory negligence under the Rules of Civil Pro-
cedure for the District Courts of the United States.

ARGUMENT

The United States Court of Appeals for the District of
Columbia Misconceived the Law of Res Ipsa Loquitur
as Stated in the Applicable Decisions of this Court
and Misapplied That Law to the Facts in This Case

In the briefs of both parties in the United States Court
of Appeals for the District of Columbia, reference was
had to the cases of Jesionowski v. Boston & M. R. R., 329,
U. S. 452, 67 Supreme Court Rep. 401, and Johnson v.
United States, 333 U. S. 46, 68 Supreme Court Rep. 391,
but the United States Court of Appeals, in its decision,

made no reference whatever to these decisions.

a

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13

The United States Court of Appeals for the District
of Columbia relied upon the previous decisions of that
Court in Washington Loan and Trust Company v. Hickey,
78 U. S. App. D. C. 59, 1387 Fed. (2d) 677, and Brown v.
Capital Transit Company, 75 U. S. App. D. C. 337, 127
Fed. (2d) 329.

In the Hickey case a screen fell from a window on the
sixth or seventh floor of a building owned and operated
by the defendant and the plaintiff was not in a position
to produce witnesses as to the cause of the falling and
the Court rightly applied the doctrine of res ipsa loquitur
for the screen was in the exclusive possession of the de-
fendant, and, if not, it was in a position to wroduce testi-
mony as to who had the possession and control of the
screen.

In the Brown case, immediately following the statement
which is contained in the opinion of the United States
Court of Appeals for the District of Columbia, is the fol-
lowing :

‘‘The rule is so stated by the Supreme Court in
Sweeney v. Erving, 228 U. S. 233. Where, as here,
it is a matter of surmise that the damage was due
to a cause for which the defendant is liable, the doc-
trine is inapplicable. If causes other than the negli-
gence of the defendant might have produced the acci-
dent, the plaintiff is bound to exclude the operation
of such causes by a fair preponderance of the evi-
dence. Here the sum and substance of appellant’s
evidence is that an injury occurred.

‘*We are of opinion that the trial Court, in direct-
ing the verdict, properly took away from the jury the
opportunity to guess and speculate, as they must have
done to reach a verdict in this case.’’

The only testimony that was available concerning the
happening of the accident and the subsequent injury was
in the sole possession and control of the female respond-
ent and her witnesses. She was an actor in the occurrence

— OT ct cali
nL ETT OE

i i
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and whether she opened the door normally or placed it
back to its fullest extent against the wall at an angle of
One Hundred Eighty Degrees (180°) or not were all facts
which were presented in the respondents’ case. If the
Court was of the opinion that there was sufficient facts
to go to the jury on the question of the petitioner’s negli-
gence it should have permitted it to go to the jury under
proper instruction on general negligence and not upon the
sole instruction covering the doctrine of res ipsa loquitur
and instructing the jury that it was necessary for the peti-
tioner to overcome an inference of negligence.

The Court could have permitted this matter to go to
the jury under proper instruction on the negligence of
the petitioner and the contributory negligence of the fe-
male respondent.

In the Johnson case, the Court, at page 48, said:

‘‘The rule of res ipsa loquitur applied in Jesio-
nowski v. Boston & Maine R. Co., supra, means that
‘the facts of the occurrence warrant the inference of
negligence, not that they compel such an inference.’
Sweeney v. Erving, 228 U. S. 233, 240, 33 S. Ct. 416,
418, 57 L. Ed. 815. We need not determine what the
result would be if it were shown that petitioner was
pulling on the rope when the accident happened. For
the uncontradicted evidence is that he was not pull-
i ing on the rope but was bending over coiling it on the
deck. A man who is careful does not ordinarily

drop a block on a man working below him. Some
external force might conceivably compel him to do so.
| But where, as here, the injured person is not im-
plicated (Jesionowski v. Boston & Maine R. Co.,
supra), the falling of the block is alone sufficient basis
for an inference that the man who held the block was
negligent. In short, Dudder alone remains implicated,
since on the record either he or petitioner was the
cause of the accident and it appears that petitioner
was not responsible.”’

The respondent definitely was an actor in this occurrence
and this Court, in the above statement taken from the

—

15

opinion in the Johnson case, leaves this particular matter
open for future decision.

Unless some definite rule is stated by this Court cover-
ing each and every instance for the application of the
doctrine of res ipsa loquitur, the District Courts and the
United States Court of Appeals for the District of Co-
lumbia will enlarge upon and misapply the doctrine until
all that will be necessary to be shown in each and every
case will be that the person has been injured and will, in
effect, change the burden of proof which is now upon the
plaintiff to the defendant.

The Doctrine of Res Ipsa Loquitur Is Not Applicable
When the Negligence Is Known

The respondents, in their complaint, stated that the
petitioner maintained said screen doors and the metal
attachments thereon, including said springs, in such a
negligent and careless manner as to cause the said metal
springs to break off when said screen door was extended,
thereby causing the same to drop off or separate and strike
the plaintiff * * * (R. 3). They attempted to prove
these facts by showing the breaking of the spring, the
fact that it appeared to be rusty and that the spring was
placed on the door approximately face high to the female
respondent. The door was shown to have been used a
short time prior thereto by one of the respondents’ wit-
nesses. There was no testimony to show what actually
caused the spring to break or where there was any negli-
gence on the part of the petitioner.

Mr. Justice Frankfurter, dissenting in part, in the
Johnson case, at page 53, made the following statement:

‘“‘But I do not believe that res ipsa loquitur is
applicable here. It is, after all, a ‘rule of necessity
to be invoked only when necessary evidence is absent
and not readily available.’ See Cooley, Torts, 4th
Ed., 480. Here the evidence as to the cause of peti-

OC ET PF PETE

gp N

a

16

tioner’s injuries was admittedly available, and it
would seem to follow that since what actually hap-
pened could have been adjudicated, it should have
been adjudicated. Therefore, I would affirm the
judgment of the court below but modify its mandate
so that there may be a new trial on this issue and
an adjudication based upon an adequate determina-
tion.’’

The petitioner had no knowledge whatever concerning
the happening of the accident except that which was con-
veyed to it by the respondents and their witnesses.

In the case of Gray v. Baltimore & O. R. Company, 24
Fed. (2d) 671, the Court, at page 673, made the following
statement:

‘We are of opinion that the maxim ‘res ipsa lo-
quitur’ has no application in this case. Negligence is
never presumed. Under the maxim ‘res ipsa loquitur’,
negligence is only inferred from the surrounding cir-
cumstances in those cases where the act of negligence
is not known. If the negligence is known, there is no
justification for the drawing of inferences. In this
case, the cause of the open switch was a matter of
common knowledge, and was fully known to the plain-
tiff. The switch was found open into the siding. The
derailing of the cars was caused by the derailing de-
vice, properly in place upon the switch rails. The
sawed lock was found soon after the accident near
the switch. The negro was apprehended, convicted,
and sent to prison, because he sawed the lock and
opened the switch. The plaintiff in no way challenges
those facts, but, on the contrary, he bases his third
count upon the failure of defendant to guard the
switch against the negro. The switch was taken
under the control of the negro at the time he sawed
the lock, and from that time until the wreck it can-
not be said that it was solely under the control of the
defendant.’’

In the case of King v. Davis, 54 App. D. C. 239, the
Court said, at page 242:

‘‘Tt is urged by appellant that the doctrine of res
ipsa loquitur should be applied in this case. That

17

doctrine may be invoked only where the facts of the
occurrence warrant the inference of negligence, and
the pleader, because of the nature of the case, is not
able to point out the specific act which caused the
injury complained of. Moore v. Clagett, 48 App.
D. C. 410, 415. But where, as here, the declaration
alleges the precise acts upon which the case is predi-
cated, namely, the service of the veal with knowledge,
actual or constructive, that it was unfit for human
consumption, the doctrine has no application. The
pleader knew the acts of negligence on which she
relied, and she was required to prove them, or some
of them, without the aid of the presumption which
flows from the application of the doctrine of res ipsa
loquitur. Moore v. Clagett, supra.’’

In the case of Pistorio v. Washington Railway & Elec-

tric Company, 46 App. D. C., at page 485, the Court made
the following statement:

‘‘The plaintiff was riding in an open car facing in
the direction the car was going. It is alleged in the
declaration how and where the collision occurred, and
the negligence of defendants is generally charged. All
the circumstances tending to establish negligence on
the part of defendants were adduced by the testimony
of plaintiff and her witnesses in her case in chief.
Nothing was left for defendants but rebuttal. To such
a case the rule of res ipsa loquitur has no application.
Where the plaintiff assumes to allege the facts con-
stituting negligence, he is bound to prove them, and
no inference of negligence arises from the happening
of the accident. ‘It is sufficient for him to charge in
general terms that he was injured while being carried
as a passenger, as the result of the negligence of the
carrier. But when the plaintiff chooses to allege in
his petition the specific acts of negligence of which
he complains, he assumes the burden of proving them,
and as in other cases must recover, if at all, upon
the negligence pleaded.’ Hamilton v. Metropolitan
Street R. Co., 114 Mo. App. 504, 89 S. W. 893, quoted
with approval in Jaquette v. Capital Traction Co., 34
App. D. C. 41, 44,5 L. R. A. (N. 8.) 407. The same
rule applies where negligence is alleged in general
terms, but the plaintiff voluntarily assumes the burden

ee FT STO

18

of proving it. ‘This presumption only arises in the

absence of evidence of the circumstances out of which

the negligence of defendant may be ascertained.’

a v. Capital Traction Co., 34 App. D. C. 358,
’

The Instrumentality Causing the Injury Was Not In
the Exclusive Control of Defendant

Your petitioner referred, in its brief in the United
States Court of Appeals for the District of Columbia, to
the case of Farina v. First National Bank, 72 Ohio App.
109, 51 N. E. (2d), page 36, where a customer of a bank
was using a revolving door in leaving the bank when it
collapsed and injured her and she endeavored to rely
upon the doctrine of res ipsa loquitur, and the Court made
the following statement:

‘‘This door, as well as doors of like design, did not
and does not operate itself. It was made available by
the bank, but was not being operated by it. By the
plaintiff’s own testimony she was operating the door
when a wing collapsed. She had to exercise some
force to procure an exit from the banking room. In
fact, unless another person was within the door at
the time, she was the sole agency which caused it to
revolve. This being true, then, at the time of injury,
the bank had no control thereover.”’

This decision is in accord with the decisions of this
Court in the case of San Juan Inght & Transit Co. v.

~~ Requena, 224 U. S. 89, 32 S. Ct. 399, and Sweeney v.

Erving, 228 U. S. 233, 33 8. Ct. 416.

The Instrumentality Causing Injury Could Have Caused
the Injury Without Negligence of the Defendant

It is not known what caused the spring to break. There
is no evidence that the spring was caused to break by
reason of any defect which might have been apparent
under any circumstances to the defendant upon an exam-
ination by it.

—_—

19

In Hook v. National Brick Co., 150 Fed. (2d) 184, the
Court referred to a statement in Restatement of the Law,
Vol. Torts, Chap. 12, Par. 300, as follows:

‘**A failure to make an inspection does not create
liability unless the inspection, if made, would have
disclosed the particular defect which makes the use
harmful to the other. * * * It is sometimes true that
those who use certain instrumentalities are under a
duty to make reasonable inspection thereof. The
duty of inspection is not, however, ordinarily an inde-
pendent duty upon which liability is based, but is a
duty, the performance of which is a condition prece-
dent to a reasonable use of the instrumentality. The
actor’s negligence lies in his act of using the defective
instrument without adequate inspection, not in his
omission to perform his duty of inspection.’ ’’

The same effect is Brown, et al v. Dorney Park Coaster
Co., Inc., 167 Fed. (2d) 433.

In the case of Woolworth v. Wiliams, 59 App. D. C.
347, 41 Fed. (2d) 970, the Court said that the proprietor
of a store is merely under a duty of exercising reason-
able care to keep his store in a safe condition and is not
an insurer of their safety while in the store.

To require of the petitioner to overcome an inference
of negligence where it is merely shown that the party is
injured would make your petitioner an insurer of the
safety of customers in its store.

The Rules of Civil Procedure for the District Courts of
the United States Do Not Require That Contributory
Negligence Be Pleaded When It Appears in the Plain-
tiff’s Testimony and the United States Court of Ap-
peals for the District of Columbia Erred in Failing
to Decide That the District Court Should Have In-
structed the Jury on Contributory Negligence.

It is true that Rule 8 (c) of the Federal Rules of Civil
Procedure states that contributory negligence is an affirm-
ative defense and should be pleaded, but this in no way

a

20

changes the law which existed in the District of Columbia
and elsewhere that where the contributory negligence
appears in the plaintiff’s own case then it may be taken
advantage of without the necessity of pleading.

In the case of J. Maury Dove Co. v. Cook, 59 App. D. C.
61, the Court, at page 62, said:

‘‘The sole question before us is whether under the
facts of this case as disclosed by plaintiff’s evidence,
defendant not having pleaded contributory negli-
gence, the question of contributory negligence should
have been submitted to the jury. Where the question
of contributory negligence is not raised by plea of
defendant, it is the almost universal rule that the
court may direct a verdict if plaintiff’s evidence dis-
closes contributory negligence as matter of law, but
that if plaintiff’s evidence merely tends to show con-
tributory negligence the question is for the jury.’’

The respondents’ evidence indicated that the female re-
spondent pushed the door back against the wall which
places an unusual strain upon the spring and this may
have been the cause of the breaking of the spring and the
subsequent injury of the female plaintiff.

The District Court was asked to instruct on contribu-
tory negligence in accordance with defendant’s instruc-
tion No. 5 (R. 11), and this was denied. The United
States Court of Appeals failed to pass upon the right of
your petitioner to have an instruction under the theory
of contributory negligence on the part of the female
respondent, and this failure to pass upon this instruction
was indicated by the Court at the time of argument to
be because of the failure of petitioner to plead contribu-
tory negligence.

The petitioner had no facts nor proof of its own upon
which to base a plea of contributory negligence and this
information or evidence appeared only in the plaintiffs’
case in chief, and your petitioner was entitled to have an
instruction on contributory negligence.

21
CONCLUSION

The record clearly discloses that the spring which
caused the injury to the plaintiff was not in the exclusive
possession and control of the petitioner at the time that
the female respondent was injured. The record indicates
that the female respondent was an actor in the cecurrence
and did have control to some degree of the instrumentality
which caused her injury. The record indicates that the evi-
dence of the cause of the female respondent’s injuries were
available and the respondents and their witness were the
only ones who had actual knowledge of the cause of the
injury, and having pleaded and attempted to prove the
negligence of the petitioner it was highly improper to
allow this matter to go to the jury on the doctrine of res
ipsa loquitur with an inference to be overcome by the peti-
tioner who had no knowledge concerning the actual hap-
pening of the accident.

If the case were permitted to go to the jury at all it
should have gone to the jury under proper instructions on
the question of the negligence of the petitioner.

The record indicates clearly that the female respondent
was in control of the instrumentality which caused her in-
jury and that it may have been her negligence in opening
the door beyond a normal limit which caused the epring
to stretch and break, and that the Court should have in-
structed the jury on the question of negligence and the
contributory negligence of the respondent.

It is respectfully submitted that the decision of the
United States Court of Appeals for the District of Co-
lumbia in this case is in conflict not only with the decisions
of this Court but with the decisions of the majority of the
Sireuit Courts where these questions have arisen; that
the questions presented in this petition are of extreme
importance and wide application to all matters pertaining

22

to actions based on negligence, and that the writ of cer-
tiorari should be granted in this case in order that the
questions presented herein may be clarified and settled by
this Honorable Court.

Corne.ius H. DoHEerty
1010 Vermont Avenue, N. W.
Washington, D. C.
Attorney for Petitioner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0073%3A1. Public record. Not legal advice.